Witley Parish Council v Cavanagh

The appellant (to which I will refer as “the Council”) appeals with the permission of Thirlwall LJ against the Order dated 14 February 2017 of Sir Alistair Macduff sitting as a Deputy High Court Judge of the Queen’s Bench Division that judgment be entered against the Council in favour of the respondent claimant on the issue of liability with quantification of damages to be assessed.

At the conclusion of the hearing before this Court on 3 October 2017, we indicated that the appeal would be dismissed with reasons for that decision to follow. These are the reasons.

The Council owns land at Witley in Surrey adjoining the main A283 Petworth Road in an area where the local authority is Waveney District Council (to which I will refer as “WBC”). On 3 January 2012, after a stormy night, a mature lime tree some 25-30 metres high on the Council’s land adjacent to the main road and to a bus stop and two benches fell across the road at the same moment as a single decker bus driven by the claimant was passing by. The bus was crushed and the claimant sustained serious personal injury for which he claims damages from the Council.

The Council had asked Mr Kevin Shepherd, a tree surgeon and specialist (who was the second defendant in the proceedings in the Court below but against whom the judge dismissed the claim) to undertake an inspection of all the trees on their land in 2006. His report recommended the removal of deadwood and 20% thinning of the lime tree which was said to be healthy. The report stated: “the survey will be for 24 months”. Those works to the tree were subsequently carried out by Mr Shepherd.

The Council had in place at the relevant time a system of inspection of all their trees, including this lime tree, every three years, in accordance with which Mr Shepherd was instructed to inspect the trees again in 2009. In the instructions to him from the Council, this lime tree was specifically identified as one he should inspect. His report of his 2009 inspection recorded against this tree; “no works” which the Council understood to mean that he had inspected it and it was healthy requiring no work. In evidence at trial Mr Shepherd sought to maintain that “no works” meant that he had not inspected the tree as he had refused to inspect trees without having full maps which had not been provided, as he had explained to the relevant Council officer. The judge disbelieved that evidence as deliberately untruthful and held that Mr Shepherd had inspected the tree in 2009, albeit only in a cursory fashion.

By the time the tree fell there was an indication of internal decay in the form of a fungal bracket 300 mm above ground level which had begun to form at some stage after the earlier inspection in 2006. One of the principal issues before the judge was whether the fungal bracket had begun to form at the time of the second inspection in 2009. The judge found (preferring the evidence of the Council’s expert Mr Barrell to that of the claimant’s expert Dr O’Callaghan on this issue) that the bracket was just beginning to form in the late summer of 2009 so that even if Mr Shepherd had inspected fully and properly, he would not have discovered it. In those circumstances, he found that any negligence by Mr Shepherd was not causative of the accident. There is no appeal against any of these findings.

In those circumstances the critical issue before the judge, with which the present appeal is also concerned, was whether, as the Council contended, its three year inspection regime (in circumstances where, as was common ground, there was no obvious defect in this tree) was reasonable or whether, as the claimant and his expert contended, given the size and location of the tree, more frequent inspection of it, every 18 months to 2 years, was required. For the purposes of this appeal, it is necessary to summarise the evidence before the judge on this issue and his conclusions in relation to it.

I have already referred to Mr Shepherd’s statement in his 2006 report that the survey was for 24 months. The judge concluded that this reflected his expert advice that the next survey of all the trees should be conducted two years later. Mr Michael Pooles QC who appeared on behalf of the Council submitted that the judge erred in reaching that conclusion, and all Mr Shepherd was saying is that his findings would be valid for two years. I cannot accept that submission. It seems to me that the judge was right to conclude that Mr Shepherd’s advice was that there should be an inspection every two years.

On 4 March 2010, the tree officer from WBC Mr Arno Spaarkogle attended a meeting of the Council and informed them that WBC, which owned a great number of trees, zoned their trees into high, medium and low risk areas. Trees in a high risk area were inspected annually. Mr Spaarkogle confirmed this in oral evidence before the judge but added that the practice ceased in 2013 due to lack of resources and WBC now adopted a three year inspection regime for high risk zones.

In his Expert Report at 4.5.4. Dr O’Callaghan said this:

Mr Barrell referred in his report to the Department of Transport Code of Practice of 2005 which said that trees should be inspected every five years, “a period which may be reduced on the advice of an arboriculturist.” He considered this too long but that inspecting every one to two years was impractical for a highway authority and that he would be more comfortable with a three to four year inspection frequency.

In their expert reports, the experts referred not only to this Department of Transport Guidance (which as the judge noted the experts agreed was only a “starting point”) but to three other available pieces of published guidance: (i) a 1975 Department of the Environment Circular which gave no guidance as to frequency of inspection; (ii) a Forestry Commission Practice Guide from 2000 (which the judge found helpful) and (iii) a 2007 Health and Safety Executive Sector Information Minute (“the HSE SIM”). Although the experts agreed that the SIM was a relevant reference for determining the type of inspection required for roadside trees, the judge did not find it useful in determining civil liability, since it was essentially directed to the standard required to avoid prosecution.

In the Joint Statement of the Experts at paragraph 6, it was agreed that: “in normal circumstances, with the exception of post severe weather conditions, an inspection frequency of three to four years is reasonable for this type of location.” Paragraph 8 recorded Dr O’Callaghan’s opinion that this tree was in a high risk zone as described in the HSE. Mr Barrell did not agree, considering that the tree was in a zone of “frequent public access”, fundamentally different from a high risk zone. Paragraph 9 recorded Dr O’Callaghan’s opinion that this tree was: “an obvious high risk category tree, i.e. one that poses a risk of causing damage to people and property; and it was located in a high risk category zone, i.e. one that is visited by people frequently on a day to day basis and for these reasons…more detailed and frequent assessments of the tree were required as the Forestry Commission advises”.

In cross-examination, Mr Pooles QC took Dr O’Callaghan to paragraph 6 of the Joint Statement. Dr O’Callaghan agreed that the Council was aware of its duty and was treating all its trees in the same way with a triennial cycle of inspection which was better than some other similar authorities. He accepted that the general approach of the Council was commendable.

However, later in cross-examination, Dr O’Callaghan expanded on his opinion, which he maintained, that this tree should have been inspected more frequently than every three years:

He went on to deny that this would necessitate more frequent inspection of all trees adjacent to main roads, although he agreed that all trees beside major roads had the potential to cause serious harm. He also agreed that it usually needed something else to trigger an individual inspection and that usually would be a sign of ill-health but could be a professional opinion because one tree may cause more harm than another.

Both in cross-examination by counsel for Mr Shepherd and in re-examination Dr O’Callaghan reiterated his opinion that the inspection frequency for this lime tree should have been more frequent than every three years, namely every 18 months. He also reiterated in re-examination that this was because he regarded the tree as a high risk tree in a high risk zone for which more frequent inspections were required.

The consistent evidence of the Council’s expert Mr Barrell was that the three year inspection cycle which the Council employed was reasonable and acceptable for all the Council’s trees, including this lime tree. At [26] of his judgment, the judge referred to Dr O’Callaghan apparently making concessions in cross-examination and then returning to his original opinion whereas Mr Barrell had kept to the agreement in the joint report. At [27] he referred to the fact that in evidence Dr O’Callaghan had accepted that he was mistaken to refer to this as a high risk category tree which it would only be if inspection showed it to be unhealthy. However, it was in a high risk position immediately adjacent to a relatively busy A road. In terms of tree risk all that could be said is that it was large, heavy and was leaning out towards the road.

Having dealt with the other issues which are no longer live before this Court, the judge turned to the issue of whether the Council was negligent in only inspecting this tree on a three-year cycle. At [51] to [54] the judge refereed to the advice from Mr Shepherd and Mr Spaarkogle (as set out at [8] and [9] above) in relation to inspection at more frequent intervals. He then referred at [56] and [57] to the 2012 survey of the Council’s trees carried out after the accident by Mr Andrew Pinchin, a chartered arboriculturist whose opinion was that all the sites were high risk sites and he recommended re-inspection in two years.

The judge then referred to the various pieces of written guidance to which I have referred at [11] and [12] above. As I have said, he said he received most assistance from the Forestry Commission Guide from which he distilled the principle at [67] of his judgment:

The judge then set out at [68] and [69] his reasons for concluding that this lime tree should have been inspected more frequently than every three years:

The judge rejected Mr Barrell’s contrary opinion based on the HSE SIM. At [70] he added three further things. First that when tendering for the 2009 survey the Council had asked for an individual report on this tree which the judge said can only have been because of its position and potential for harm, in itself a recognition of the need for especial care. The second matter was Mr Pooles’ submission that the Council had exceeded its duty by treating all its trees with the same care and subjecting them to a three year inspection cycle. In relation to that point the judge said:

The third matter referred to the fact that other trees in the parish were not of this size and weight:

The judge then referred to the zoning policy which had now been adopted by the Council. It appears that this was an error but that does not detract from the validity of the point he had just made which I have quoted. The judge went on to conclude in [71] that the Council had been negligent in not inspecting this tree every two years and that had they done so, that inspection would have discovered the tree was diseased well in advance of the accident.

The grounds for which permission to appeal was given are as follows:

The judge erred in accepting Dr O’Callaghan’s evidence notwithstanding that he had departed from the position in paragraph 6 of the Joint Statement, that he accepted in cross-examination that the three year regime was reasonable and that his report was predicated upon the tree being high risk when it was accepted and was common ground as recorded in [69] of the judgment, that it was not.

The judge erred in placing significance on the fact that (i) the tree was mature when the experts agreed that age was only relevant when a tree was at or towards the end of its life which this tree was not; (ii) the tree was leaning towards the road which none of the experts considered of any significance.

The judge erred in concluding that the various written guidance supported his conclusion in that: (i) he wrongly rejected the relevance of the HSE SIM which whatever the purpose of its authors, was accepted by the experts as relevant; (ii) he wrongly rejected the Department of Transport guidance which was agreed by the experts as the starting point; (iii) he wrongly construed the Forestry Commission guidance (which pre-dated the government guidance) as applicable because it only identified large, old trees (which this is not) as requiring frequent inspection and it was at odds with other guidance.

The judge wrongly concluded that there was a body of opinion which supported his conclusion since (i) Mr Shepherd did not place a two year time limit on his 2009 report; (ii) Mr Minchin’s subsequent report did not distinguish between any of the trees and what the judge said about the tree stock in [70] was speculation; (iii) Mr Spaarkogle did not recommend a two year inspection period. He had referred to an annual inspection by WBC of roadside trees which had proved impractical and been replaced by three year inspections; (iv) the judge placed a duty on the Council which went beyond the expert’s reasoning or supporting documentation in requiring the zoning of tree stock.

It was common ground before this Court that the relevant legal principles are correctly summarised by Coulson J as he then was in Stagecoach South Western Trains v Hind[2014] EWHC 1891 (TCC) at [68] (omitting references to earlier cases):

The Council was refused permission to appeal on a ground which contended that the judge had failed to apply these principles correctly, so that it has to be accepted for the purposes of this appeal that he stated and applied the legal principles correctly. From this it follows that the present appeal is concerned only with a challenge to the judge’s findings of fact and evaluation of the evidence.

In his oral submissions, Mr Pooles QC focused on the point that although this tree was admittedly in a high risk location, it was not a high risk tree by reference to any recognised or published criteria. He submitted that the trigger for concern is a sign of ill-health and that is what would make a tree a high risk tree. He relied upon paragraph 3 of the Department of the Environment 1975 Circular and that the Forestry Commission guidance that annual inspections in high risk locations would only be required in the case of large old trees, which this was not. It was a mature tree, one half to two thirds through its natural life. It was to all appearances perfectly healthy. It was not a high risk tree, as had been accepted at trial and as recorded in the judgment.

Mr Pooles QC placed particular reliance on the HSE SIM. He submitted that the judge had been wrong to discount this on the basis that it was directed at enforcement officers in relation to potential prosecutions given that (i) the experts agreed that it provided relevant guidance in relation to the issues in this civil litigation; (ii) any Health and Safety Act offence would involve breach of a duty of care in the same was as civil liability in negligence. The HSE SIM provided:

As before the judge, Mr Pooles QC was critical of the evidence of Dr O’Callaghan on the basis that he had conceded in cross-examination that the Council’s three year inspection cycle was reasonable, but had then resiled from that concession in re-examination. Mr Pooles QC submitted that the judge was faced with a stark difference of opinion between the experts and had preferred Dr O’Callaghan without explaining why, in circumstances where there was no foundation for the opinion expressed in paragraph 9 of the Joint Statement.

On behalf of the claimant, Mr Bleasdale QC submitted that the judge’s key reasoning at [69] of his judgment cannot be faulted. The Council’s case was essentially that the only trigger to more frequent inspection of a tree in a high risk location such as this tree was if the tree is defective. This was intuitively incorrect and contrary to common sense as Dr O’Callaghan said in cross-examination in the passage I have quoted at [15] above, where he dealt with the guidance in the HSE SIM.

Mr Bleasdale QC submitted that there was no prescription in any of the written guidance or in the case law as to the appropriate period between inspections for particular trees. An appeal against findings of fact such as this one faces a high hurdle which the Council could not surmount here. The judge had set out accurately what the evidence was and properly evaluated it. He had been entitled to discount the HSE SIM as being directed to standards applicable to criminal prosecutions and to prefer the evidence of Dr O’Callaghan to that of Mr Barrell. His reasons for doing so were clear from his judgment as a whole.

Despite the elegance of Mr Pooles QC’s submissions, I cannot accept them for a number of reasons. First and foremost, as I have already said, the appeal is a challenge to the judge’s findings of fact and on analysis those findings were ones the judge was entitled to make in evaluating all the evidence before him. Contrary to Mr Pooles QC’s submissions, I consider that the judge’s core reasoning at [68] to [70] of his judgment was supported by evidence, in particular the expert evidence of Dr O’Callaghan and the Forestry Commission guidance. The judge’s reasoning in [68] and [69] as to the relevance of the size and weight of the tree and its potential to cause very serious injury or damage reflects the evidence which Dr O’Callaghan gave in cross-examination and re-examination which I have quoted at [15] and [17] above.

Despite Mr Pooles QC’s argument (which seems to have been accepted by the judge at [25]-[26] of the judgment) that Dr O’Callaghan conceded the point about a three year inspection cycle being reasonable and then went back on that to reiterate what he had said in his report, I consider that, viewing his evidence as a whole, he remained consistent in his opinion. What was agreed in paragraph 6 of the Joint Statement was always subject to the caveat of the opinion he expressed in paragraphs 7 and 9. In any event, even if there was an inconsistency in his evidence (whereas Mr Barrell remained consistent) the judge was aware of that (see [26]) and took it into account in his evaluation of their respective expert evidence. That was quintessentially a matter for the trial judge who saw and heard the witnesses. There is nothing in the suggestion that the judge has failed to set out why he preferred the evidence of Dr O’Callaghan to that of Mr Barrell. As Mr Bleasdale QC submitted, his reasons for doing so are clear from the judgment as a whole, in particular the key passages at [68] to [70]. In my judgment, there is no ground for interference with the judge’s evaluation of the evidence.

There is also nothing in Mr Pooles QC’s criticism that there is no foundation for Dr O’Callaghan’s opinion set out in Paragraph 9 of the Joint Statement and reiterated in the passages in cross-examination and re-examination which I have quoted at [15] and [17] above that the high risk location of this tree and the risk of it causing damage to people and property. As Dr O’Callaghan says the more detailed and frequent assessment of such a tree is in accordance with the Forestry Commission advice. In my judgment that is clearly a reference to a passage in the Forestry Commission document in a section headed “Zoning a Site” which reads:

Mr Pooles QC’s submission that the Forestry Commission guidance on frequent inspection only applied to large, old trees essentially overlooked this particular passage in the document. When asked about it by this Court Mr Pooles QC submitted that the Council had in effect designated the whole parish as a high risk area. However, that is no answer to the force of the point being made in this passage about the need for particular “rigour” in inspecting large trees which are adjacent to a main road and which represent a significant potential hazard. I consider that the judge’s conclusions in [68] and [69] about the need for inspection of this tree, given its maturity, size and location, more frequently than every three years is consistent with the guidance in this passage, with which Dr O’Callaghan’s opinion is also consistent.

Furthermore, although Mr Barrell maintained in evidence that the three year inspection cycle was appropriate and reasonable for this tree, other aspects of his evidence would seem to support the judge’s conclusion that more frequent inspection was required for this tree. In his report he said: “…my experience is that it is common for mature trees to have significant internal decay with no obvious external indications of that internal condition”. In cross-examination he accepted that a mature tree with such internal decay could fail in two years, which supports the judge’s conclusions at [69] as to the risk this tree posed and at [70] that inspection of this tree at least every two years was required.

Like the judge, I do not consider that much reliance can be placed on the HSE SIM. To the extent that the passage relied upon by Mr Pooles QC quoted at [29] above seems to be suggesting that individual inspection of a tree in a frequently used location (which would seem to correspond with what is described elsewhere as a high risk location) is only required where there is some sign of a defect, that would seem to be out of line with other guidance, particularly that of the Forestry Commission. The HSE seems to be advocating a less stringent inspection regime, possibly because it is looking at potential criminal prosecution rather than civil liability and, in any event, this is only an “example” of when inspection of an individual tree is required. In my judgment, nothing in this guidance assists as to how frequent the inspection of this tree should have been and Dr O’Callaghan’s evidence when cross-examined about this guidance (quoted at [15] above) is to be preferred.

Mr Pooles QC was critical of other passages in the key paragraphs [68] to [70] of the judgment, for example the judge’s comparison of this tree with other trees in the parish. However there is no suggestion in the Grounds of Appeal that the judge’s findings in this regard were not supported by evidence or were somehow an invention on his part. In any event, whatever other large trees there were in the parish, the judge was entitled to conclude that this tree required inspection at least every two years.

Mr Pooles QC also criticised the judge for taking account of the fact that the tree was leaning “in the wrong direction” i.e. over the road, on the basis that none of the experts had identified this as a relevant factor. However, the judge was not hidebound by the expert evidence and was entitled to exercise his own common sense. Having seen the photographs of the tree before it fell and of the damage to the claimant’s bus and the house it was passing when the tree fell (which are exhibited to Mr Barrell’s expert report) I consider that the judge was fully entitled to prefer Dr O’Callaghan’s evidence to that of Mr Barrell and to reach the conclusions he did.

In my judgment, the judge’s reasoning in relation to the need for inspection at least every two years and his conclusion as to the liability of the Council are unimpeachable. The appeal is dismissed.

I agree

I also agree